Bradshaw & Bradshaw (No 4) - [2024] FedCFamC1F 40

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bradshaw & Bradshaw (No 4) [2024] FedCFamC1F 40

File number: NCC 535 of 2022

Judgment of: CHRISTIE J

Date of judgment: 5 February 2024

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Adjournment – Application for Review of the making of a recovery order – Where the subject child has absconded since the making of a recovery order – Where there is limited objective and up-to-date evidence in hearing the matter de novo – Where proceeding with determining the matter may compromise the interests of justice – Adjournment granted – Orders for the production of documents.

Legislation:
Family Law Act 1975 (Cth) s 69ZW

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 5 February 2024

Counsel for the Applicant: Mr Duane

Solicitor for the Applicant: Gillard Family Lawyers

Solicitor for the Respondent: Mr White, Powe & White Family Lawyers
ORDERS

NCC 535 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BRADSHAW

Applicant

AND:
MR BRADSHAW

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

5 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Application for Review filed 30 January 2024 is adjourned to a date to be fixed.
2.Pursuant to s69ZW of the Family Law Act 1975 (Cth) NSW Health is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.
3.Pursuant to s69ZW of the Family Law Act 1975 (Cth) NSW Police is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.
4.Pursuant to s69ZW of the Family Law Act 1975 (Cth) the Department of Communities and Justice is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.
5.It is requested that in giving attention to the orders under s69ZW of the Family Law Act 1975 (Cth) the entities involved use their best endeavours to produce the documents as soon as practicable.
6.The mother has leave to issue any subpoena on short notice addressed to K Limited, to be made returnable on 13 February 2024 provided it is filed and served today.
7.The father has leave to issue a subpoena on short notice directed to D School, provided that the subpoena is filed and served today it may be made returnable on 13 February 2024.
8.Leave is granted to the mother to file and serve a subpoena directed to the telecommunications provider for Ms L, if such subpoena is filed and served today it may be returnable on 13 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bradshaw & Bradshaw (No 4)

Details

AGLC: Bradshaw & Bradshaw (No 4) [2024] FedCFamC1F 40
Case: [2024] FedCFamC1F 40
Decision Date: 5 February 2024

CaseChat Overview and Summary

In the case of Bradshaw & Bradshaw (No 4), the applicant, Ms Bradshaw, sought a review of a recovery order made in relation to the parties' child, X, born in 2010. The matter came before Christie J in the Family Law Division of the Federal Circuit and Family Court of Australia. The court was tasked with deciding whether to grant an adjournment for the review application and to issue directions for the production of documents pertaining to the child, given that X had absconded since the recovery order was made.

The legal issues before the court involved the appropriateness of proceeding with the review of the recovery order in light of the child's current whereabouts and the availability of up-to-date evidence. The court had to balance the interests of justice with the need to ensure that the child's welfare and safety were paramount. Additionally, the court considered whether compelling the production of documents from various agencies would assist in making an informed decision. The court concluded that proceeding with the review without sufficient evidence could potentially compromise the interests of justice. Therefore, it was in the best interest of the child to grant an adjournment and to issue directions for the production of documents from NSW Health, NSW Police, and the Department of Communities and Justice.

In light of the above, the court granted the application for an adjournment and directed that documents from the specified agencies be produced as soon as practicable. Further, the court allowed both parties to issue subpoenas to K Limited, D School, and the telecommunications provider for Ms L, provided these were filed and served promptly. These orders were intended to facilitate the review application when the matter is next heard, ensuring that the court has the necessary information to make a just and informed decision.

Orders

Orders of the court

NCC 535 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BRADSHAW

Applicant

AND:

MR BRADSHAW

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

5 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Application for Review filed 30 January 2024 is adjourned to a date to be fixed.

2. Pursuant to s69ZW of the Family Law Act 1975 (Cth) NSW Health is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.

3. Pursuant to s69ZW of the Family Law Act 1975 (Cth) NSW Police is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.

4. Pursuant to s69ZW of the Family Law Act 1975 (Cth) the Department of Communities and Justice is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.

5. It is requested that in giving attention to the orders under s69ZW of the Family Law Act 1975 (Cth) the entities involved use their best endeavours to produce the documents as soon as practicable.

6. The mother has leave to issue any subpoena on short notice addressed to K Limited, to be made returnable on 13 February 2024 provided it is filed and served today.

7. The father has leave to issue a subpoena on short notice directed to D School, provided that the subpoena is filed and served today it may be made returnable on 13 February 2024.

8. Leave is granted to the mother to file and serve a subpoena directed to the telecommunications provider for Ms L, if such subpoena is filed and served today it may be returnable on 13 February 2024.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NCC 535 of 2022
Judgment of:	CHRISTIE J
Date of judgment:	5 February 2024
Catchwords:	FAMILY LAW – PRACTICE & PROCEDURE – Adjournment – Application for Review of the making of a recovery order – Where the subject child has absconded since the making of a recovery order – Where there is limited objective and up-to-date evidence in hearing the matter de novo – Where proceeding with determining the matter may compromise the interests of justice – Adjournment granted – Orders for the production of documents.
Legislation:	Family Law Act 1975 (Cth) s 69ZW Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	5 February 2024
Counsel for the Applicant:	Mr Duane
Solicitor for the Applicant:	Gillard Family Lawyers
Solicitor for the Respondent:	Mr White, Powe & White Family Lawyers

NCC 535 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BRADSHAW Applicant
AND:	MR BRADSHAW Respondent

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	5 FEBRUARY 2024